Separation of Powers

• • In every government, there are three separate 'branches' who each have different powers:

  1. Legislature - make the laws
  2. Executive - set the overall policy
  3. Judiciary - enforce the laws in courts

  • keeping the judiciary separate allows for delivery of fair and impartial justice in cases.
  • Ensures no single person or body should hold all of the power in society.
  • System provides checks and balances between the 3 branches.
• • 18th Century idea from Montesquieu supported by most developed nations around world.
  • UK have some overlaps:
  • Parliament (legislature) and government (executive) are made up of the same poepel.
  • e.g. Prime Minister and government ministers are also MP's in House of Commons.
  • Before 2005, were significant overlaps with judiciary too.
  • these have been addressed by Constitutional Reform Act 2005.
• JUDICIAL INDEPENDENCE

  Judges are separate from the Executive (government) as:

  • They cannot be fired by the government.
  • They are free to make decisions against the government.
  • E.g., as seen in Miller where the judges ruled Prime Minister Theresa May was acting unlawfully by attempting to leave the EU without permission of Parliament.
  • Constitutional Reform Act 2005 requires Lord Chancellor and government ministers to uphold judicial independence and not seek to influence decisions.
  • They are now appointed independently by the Judicial Appointments Commission.
• JUDICIAL INDEPENDENCE

  Judges are separate from the Legislature (Parliament) as:

  • They are not involved in the law-making process.
  • They cannot become MPs (except Recorders)
  • The Supreme Court is now separate from the House of Lords - physically, and in name.
  • Previously the Law Lords were members of the House of Lords - now Supreme Court Justices are not.
• JUDICIAL INDEPENDENCE:

  • When we discuss "Judicial Independence", refers to judges being separate and independent from the other two branches.
  • This was secured in the UK through the Constitutional Reform Act 2005.
  • In addition, judges are required to ignore outside influences when making decisions.
  • Includes pressure from Parliament, the government, the public and their own prejudices.
• Independence of the Judiciary:

  • Protects the liberty of all individuals and stops the abuse of power by the government, as there will always be a route to challenge government activities - this is seen as vital in a democracy.
  • This also means judicial decisions are based solely on the application of the law to the facts of the case.
  • This in turn leads to high levels of public confidence in the system.
• Limited Role of Lord Chancellor:

  • Lord Chancellor was sole person responsible for hiring judges before the Constitutional Reform Act 2005, who hired from secret file.
  • Now this role has been passed onto the Judicial Appointment Commission who is an independent group of 15 people (lay members, judges and lawyers) who appoint based solely on merit.
  • The Lord Chacellor can now only make one rejection and must give clear reasons to the Judicial Appointment Commission.
• Creation of the Supreme Court:

  • The Supreme Court was created by the Constitutional Reform Act 2005, which replaced the House of Lords.
  • This moved the highest appeal court out of the physical setting of Parliament and into a new, separate building.
  • It also changed the name of the institution, and the 'Law Lords' who worked within it became 'Supreme Court Justices', who were no longer members of the legislative body of the House of Lords.
• Security of Tenure:

  • Superior judges (CoA and Supreme Court) have security of tenure, which means job security.
  • It is difficult to remove them from their role and therefore they cannot be dismissed by the government solely because of the decision they make.
  • Instead they can only be sacked for gross misconduct.
• Immunity from Suit:

  • This means judges cannot be sued by parties - or the government - for their decisions, including defamatory statements they may make in court.
  • In Sirros v Moore a judge wrongly ordered someone to be kept in custody, but could not be personally sued for false imprisonment as they were carrying out their judicial duties.
• Independence from the case:

  • Judges cannot oversee a case if they are connected to any of the parties involved in the case.
  • In the case of Pinochet regarding the extradition of the Chilean dictator, the human rights charity Amnesty International were one of the parties - and the case had to be re-heard once is was discovered the judge Lord Hoffman was an unpaid director of this charity.
• Salaries Set by Independent Body:

  • The amount of salary paid to judges is se through an independent group called the Senior Salaries Review Body.
  • They will decide how much a judge is paid, and salaries are then paid through the Ministry of Justice.